As Robb and Harold both noted last week, Time Warner Cable‘s users are less than thrilled when it comes to the company’s broadband usage caps, which are set to significantly expand their footprint this fall. Despite the company’s claims that its customers don’t mind paying by the byte for their “excess” bandwidth, users have been very vocal in expressing their displeasure, even going so far as to organize protests in both Rochester, NY and Greensboro, NC. As a result of the public backlash, Time Warner has delayed the rollout of its caps in at least one location, with more delays, presumably, to come. This is a very encouraging development and echoes the successful netroots resistance to three strikes that we saw in France and New Zealand earlier this year, whereby ordinary folks used the web to organize and object to policies that would have restricted their access to the Internet. Given the recent success of these netroots campaigns, as well as the volume of negative press generated by its own capping initiative, you would think that Time Warner would be playing defense. But you would be wrong. Defying common logic, the company has gone on the offensive, in an attempt to gut the Net Neutrality provisions in the Stimulus Act.
Earlier this week, Time Warner submitted comments to the FCC (PDF link) that pertain to the “consultative” role that the Stimulus Act requires the agency to play in the Broadband Technology Opportunities Program (BTOP). On the whole, the recommendations made in Time Warner’s comments are unsurprising, given that the company is the second largest provider of cable services in the country. In its comments, Time Warner advises the Commission to stick with its woefully out-of-date definition of broadband (PDF link) (anything that’s 768 kpbs or faster downstream, i.e. DSL or better), beseeches the Commission to define the terms “unserved” and “underserved” in a manner that would not allow grants to be used to deploy services in areas where any broadband service is already being offered (presumably because doing so would introduce an undesirable dynamic known as “competition”) and asks that the Commission not require any new interconnection requirements (there’s that “competition” thing again). Given Time Warner’s public positions on these issues, none of this is shocking in the least.
What is surprising, however, is the hard-line that the company takes against the net neutrality provisions in the Stimulus Act. From Time Warner’s filing:
Now is not the time, nor is this the appropriate proceeding, to engage in a debate about the need for net neutrality obligations…Although the [Stimulus Act] conditions funding grants on compliance with the Broadband Policy Statement, the Commission should carefully consider whether imposing additional net neutrality obligations would be counterproductive to the statute’s goals. In particular, as [Time Warner Cable] and other commenters in other proceedings have emphasized, given the dynamic competition that characterizes the broadband marketplace, the tremendous growth in broadband that has occurred in the absence of intrusive regulation, and the disincentives against investment that such regulation can cause, the Commission should be especially loathe to recommend the application of net neutrality regulations in connection with programs that are intended to spur additional investment.
In lieu of making a substantive argument against the adoption of net neutrality conditions, Time Warner simply suggests that it would be inappropriate to discuss net neutrality in the context of the Stimulus Act (PDF). The company argues that competition provides service providers with enough of an incentive to be on their best behavior–a fact that is negated by Time Warner’s decision to roll out bandwidth caps in markets where the only other providers are doing the same. The issue of competition aside, doesn’t the Stimulus Act specifically require the FCC and NTIA to “publish nondiscrimination and network interconnection obligations that shall be contractual conditions of grant awards, including, at a minimum, adherence to the principles contained in the FCC’s broadband policy statement”? And doesn’t that broadband policy statement basically mandate that providers adhere to the principles of net neutrality? Let’s review those four principles set forth in the FCC’s 2005 Broadband Policy Statement (PDF link), shall we?
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.
Whether or not you think that they’re enforceable in their current configuration, it should be clear that the language in the four principles falls squarely within the conceptual confines of net neutrality. All that’s missing is language that explicitly requires providers to adhere to a principle of nondiscrimination. Given that nondiscrimination is required in the Statute, however, the NTIA and the FCC will be required to utilize at least some language that does not appear in the Broadband Policy Statement–whether Time Warner likes it or not.
And lest you think that net neutrality advocates on the opposing side are using this as an excuse to push for the FCC and NTIA to adopt all sorts of conditions that go above and beyond what is called for in the Statute, I’ve included below a quote from the comments that we filed in the same docket at the FCC, as part of the Public Interest Spectrum Coalition (PISC) (PDF link):
As was recommended in the testimony of Gigi Sohn (3/23/09, page 1) and Ben Scott (3/23/09) before the NTIA, recipients of the grants and loans must not degrade, prioritize or discriminate against any lawful content, application or service transmitted over the recipients’ network or service, subject to a rule of reasonable network management, must allow users to attach any device or application to the network, so long as that device or application does not harm the network and must provide interconnection at any technically feasible point within the network on a reasonable, non-discriminatory basis.
Unlike Time Warner, we’re not asking the NTIA and the FCC to radically reinterpret the language in the Stimulus Act. Our recommendations simply echo the requirements of the Statute and the FCC’s four principles, which were intended to guide the NTIA and FCC in defining the conditions of grants and loans awarded under the BTOP program.
As the language in the Stimulus Act clearly states, it was Congress’ intent that any and all programs funded by taxpayer dollars be open, interconnected and nondiscriminatory, in accordance with the core principles of net neutrality. In writing these conditions into the Statute, Congress hoped to ensure that taxpayer money would be awarded to entities acting in the public interest, in order to spur the deployment of infrastructure that will provide lasting value to all Americans. In recommending that the FCC drop the net neutrality requirements in the Stimulus Act, Time Warner is essentially asking the Agency to defy Congress’ orders, so that entrenched, corporate service providers can receive handouts of taxpayer money with few strings attached. If you ask me, there’s a time and a place for this sort of corporate self-interest. Now is not the time and the Stimulus Act, clearly, is not the place.